NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0007n.06

Filed: January 4, 2006 No. 04-1892 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. KEVIN MITCHELL and BARBARA MITCHELL, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

/ BEFORE: MERRITT, MARTIN, and COLE, Circuit Judges. The United States appeals the district court’s grant of Barbara Mitchell’s and Kevin Mitchell’s motion to suppress evidence. For the fo rgoing reasons, we AFFIRM the district court’s judgment granting the Mitchells’s motion to suppress.
I. During the summer of 2003 a team of law enforcement officers investigating drug trafficking in the Grand Rapids, Michigan area focused upon an alleged drug dealer named Darrell Mitchell. Darrell is the brother of Kevin Mitchell and the son of Barbara Mitchell. On August 6, 2003, the police recorded a telephone conversation between a confidential informant and Darrell Mitchell during which Darrell said that he would get drugs for the informant from his stash house. The stashNo. 04-1892 United States v. Mitchell Page 2 house was known to the informant to be an apar tment located at 3676 Camelot Drive. Following this conversation, the police observed Darrell enter the apartment building and exit it carrying a package. The police then saw Darrell give the p ackage, which was later found to contain cocaine, to the confidential informant. The police arrested Darrell and took him to the Kent County Jail. While Darrell was being brought into the jail, his brother Kevin was being released from jail on unrelated charges. The two observed each other but were not able to speak to one another. After Darrell was arrested, several police officers continued to conduct surveillance on the Camelot apartment building while a search warrant was being obtained to search the apartment. Detective Richard Brown and Detective Peter Gerkin remained parked in an unmarked car hidden outside of the building. Approximately one hour af ter Darrell was brought to jail, Detectives Brown and Gerkin observed a Chrysler Concorde pull up to the Camelot apartment building. The car was driven by a black female, later determined to be Barbara Mitchell, and there was a black male, later determined to be Kevin Mitchell, sitting in the passenger seat. The two exited the car and went into the apartment building. Detectives Brown and Ge rkin informed two other officers in the area, Detective Michael Mesman and DEA Agent Scott Sy me, of this development and the two officers came to the scene. Several minutes later, the officers observed Barbara and Kevin Mitchell leave the apartment building carrying several bags and place the bags in the trunk of their car. At this point the officers decided to approach the vehicle. Detectives Br own and Gerkin pulled up beside the vehicle, while Detective Mesman and DEA Agent Syme approachedthe passenger side of the vehicle on foot. All four of the officers were weari ng plain clothes and were carrying concealed weapons. The officersNo. 04-1892 United States v. Mitchell Page 3

1 The Mitchells also sought to suppress other evidence but the district court denied the motion and it is not a subject of this appeal. showed Kevin and Barbara their badges and requestedthat Kevin and Barbara turn off the car and exit the vehicle. Kevin was taken to the front of the car to be questioned while Barbara was taken to the rear of the car. DEA Agent Syme asked Kevin what was in th e trunk of the car to which Kevin replied “stuff.” When asked what kind of stuff, Kevin stated it was “just some stuff.” Concurrently, Detective Brown asked if there was anything in th e vehicle that the officers should know about and Barbara responded that she knew about the drugs but that she did not know about the guns. Detective Brown requested permission to searchthe car and Barbara replied “go ahead.” The officers’s entire conversation with Kevin and Barbara lasted between thirty seconds and two to three minutes. The officers then searched the car and found several firearms and ammunition along with cocaine and marijuana in the bags in the trunk of the car. Kevin and Barbara were later arrested and the Camelot apartment was searched pursuant to a search warrant. On August 12, 2003, Kevin and Barbara Mitchell we re indicted on various drug and firearm related charges stemming from the search of their car and the Camelot apartment. Both Kevin and Barbara filed motions to suppress their statements to police outside their car on the grounds that the officers’s custodial interrogation violated Miranda v. Arizona , 384 U.S. 436 (1966). 1 The district court held an evidentiary hearing regarding the suppression motions. The district court granted Kevin and Barbara Mitchell’s motion to suppress th eir statements on the grounds that the officers failed to provide Kevin and Barbara Mitchell with a Miranda warning and “[t]he circumstances []No. 04-1892 United States v. Mitchell Page 4 indicate that Kevin and Barbara Mitchell werein custody when the police stopped and began questioning them.” The government then appealed the district court’s decision.
II. The government alleges that the district court erred in granting the Mitchells’s motion to suppress on the grounds that no Miranda warning was necessary because the Mitchells were not in custody when questioned by police. When reviewi ng a motion to suppress, we review a district court’s factual findings for clear error and its legal conclusions de novo. United States v. Crossley , 224 F.3d 847, 86 (6th Cir. 2000). The question of whether a defendant was “in custody” is a mixed question of fact and law and is thus reviewed de novo. United States v. Salvo , 133 F.3d 943, 948 (6th Cir.), cert. denied , 523 U.S. 1122 (1998). Miranda requires police to issue warning prior to conducting a custodial interrogation, which the Supreme Court has defined as “questioning in itiated by law enforcement officers after a person has been taken into custody or otherwise deprivedof his freedom of action in any significant way.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). In determining whether a defendant is in custody for purposes of Miranda , a court “must examine ‘all of the circumstances surrounding the interrogation’ and determine ‘how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.’” Yarborough v. Alvarado, 541 U.S. 652 (2004)(quoting Stansbury v. California , 511 U.S. 318, 322, 325 (1994)). Specifically, the Court has indicated that “[t]he Miranda custody inquiry is an objectiv e test” which involves “two discrete inquiries”: (1) “what are the circumst ances surrounding the interrogation”; and (2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminateNo. 04-1892 United States v. Mitchell Page 5 the interrogation and leave.” Id. Based on the Supreme Court’s test for determin ing the custody inquiry, we conclude that the Mitchells were in custody at the time of their in terrogation. The Mitchells were about to drive away from the apartment building when the police offi cers’s vehicle pulled up along side the Mitchells’s car causing it to stop. The four officers then appro ached the vehicle, with two officers approaching either side of the vehicle. The officer displayed their badges and informed the Mitchells that the officers were involved in a drug tr afficking investigation. The officers ordered the Mitchells to exit the vehicle and separated them so they could not confer with one another. Kevin was questioned at the front of the car while Barbara was questioned at the back of the car. Given these circumstances, we conclude that a reasonable person in Barbara or Kevin Mitchell’s position would not have felt at liberty to terminate the interrogation and leave. Although the police did not display their guns or threaten the Mitchells, the officers’s stop of the Mitchells’s car and the quantity of officers involved in the st op would certainly have been intimidating to a reasonable person. Moreover, the officers’s statemen ts that they were questioning the Mitchells in connection with a drug trafficking investigation, their orders that the Mitchells exit the vehicle and their questioning of the Mitchells in separate locations, all suggest an interrogation environment in which a reasonable person would not have felt free to end the questioning and walk away. As a result, we conclude that the Mitchells were in custody and thus the officer were required to provide the Mitchells with a Miranda warning prior to the interrogation. Because the officer failed to provide such a warning, we conclude that the Mitc hells’s constitutional rights were violated and that the district court properly granted the Mitchells’s motion to suppress.No. 04-1892 United States v. Mitchell Page 6 III. For the reasons stated above, we AFFIRM the di strict court’s grant of the Mitchells’s motion to suppress.